McCain-Feingold takes a hit

For years, many of us in the blogosphere have argued that the Bipartisan Campaign Reform Act, better known as McCain-Feingold, violates the fundamental Constitutional exercise of free speech, especially in politics, which the founders expressly intended to protect.  The Supreme Court failed in its duty to protect the First Amendment when it had the chance, as did George W. Bush when he signed the legislation into law.  Finally, a federal appellate court has recognized the insult to the Constitution that the BCRA represents:


A federal appeals court overturned hard-fought campaign finance reform regulations in a ruling on Friday that will make it easier for independent political groups to raise and spend money to influence elections.

The three-judge panel struck down regulations intended to blunt the power of such organizations, including the controversial Swift Boat Veterans for Truth and, which drew heavy criticism for spending tens of millions of dollars on aggressive advertisements during the 2004 presidential campaign.

The ruling, if it stands, could provide a boost to Republicans and their allies as they try to win back Congress in 2010 and the White House in 2012. Outside conservative groups could become particularly important in countering the fundraising juggernaut of President Obama, who shattered past records by raising more than $750 million during his 2008 campaign.

In fact, they objected to the BCRA’s restrictions on organizing and fundraising on explicitly First Amendment grounds:

The group challenged several Federal Election Commission regulations, arguing that the rules violated its First Amendment rights by limiting its ability to spend and raise money to influence elections. Circuit judges Brett M. Kavanaugh and Karen LeCraft Henderson agreed that the regulations violate free speech rights. A third judge, Janice Rogers Brown, said the regulations were invalid for other reasons.

“The First Amendment, as the Court has construed it, safeguards the right of citizens to band together and pool their resources . . . to express their views about policy issues and candidates for public office,” Kavanaugh wrote in his 44-page opinion. …

Kavanaugh wrote that such rules were unconstitutional because they limited speech by political groups. The rules “do not pass muster,” he wrote, adding that they did not serve an anti-corruption purpose and had been enacted to “better equalize the voices of citizens and groups who participate in the political process.”


Those aren’t the only rules that don’t pass muster.  The BCRA also restricted outside groups from launching ads that mention incumbents in the final 60 days of an election cycle unless those ads get financed by hard money.  We referred to the bill as the Incumbency Protection Act thanks to this codicil, which only serves to protect entrenched power in the Beltway and make incumbents less accountable.  That is already under challenge and will be decided by the Supreme Court soon; hopefully, this court will do better than the last.

The opinions were interesting for their recalculation over the last few years on the right of Americans to organize into political action groups.  The main opinion noted that political contributions count as “speech” and that restricting them runs into First Amendment issues:

First, the Court has held that campaign contributions and expenditures constitute “speech” within the protection of the First Amendment. In Buckley, the foundational case, the Court definitively ruled that “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.” 424 U.S. at 14. The Court has never strayed from that cardinal tenet, notwithstanding some passionate objections. …

Second, the Court has ruled that the Government cannot limit campaign contributions and expenditures to achieve “equalization” – that is, it cannot restrict the speech of some so that others might have equal voice or influence in the electoral process. In perhaps the most important sentence in the Court’s entire campaign finance jurisprudence, Buckley stated: “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”


In other words, it is not Congress’ job to redistribute speech.  It’s also not their job to redistribute wealth, which a court will someday make plain, based on Article I, Section 8 of the Constitution.  Political action groups (and for that matter, incumbents) should have equal opportunity to raise money and conduct speech, but they should not be guaranteed equal outcomes — which with the BCRA actually means unequal outcomes.

This is a decision we have waited a long time to see.  Undoubtedly, it will get appealed to the Supreme Court, which will have to decide whether speech redistribution is a function that belongs to Congress, or an explicit affront to the First Amendment.

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John Sexton 7:00 PM on December 09, 2023